The life of the Property Misdescriptions Act is finally coming to an end. The Property Misdescriptions Act 1991 (Repeal) Order 2013 will repeal this legislation as from 1 October 2013.
The reason for this is part of the current government’s drive to reduce duplication and excess regulation although, in truth, this repeal was being discussed well before the last election. It is generally considered that the [http://www.legislation.gov.uk/ukdsi/2008/9780110811574/contents Consumer Protection from Unfair Trading Regulations 2008] (CPRs) do everything the PMA is doing and more besides.
Certainly the CPRs cover any form of misleading information previously covered under the PMA. However their scope is also far wider in that they cover misleading advertising as well and take effect far earlier in the process. In fact it has been suggested in government guidance that even inducing a prospective purchaser to enter an estate agent’s offices with misleading advertising would be a breach of the CPRs. In addition the CPRs cover all forms of trading, not merely estate agency. Therefore letting agency and property management are also covered by the CPRs. So the CPR should do much more than the previous PMA.
The problem is more one of application and enforcement. The OFT is having its role downgraded and local trading standards officers will be expected or enforce the CPRs. This is likely to lead to very inconsistent enforcement as individual officers enforce, misinterpret, or ignore the regulations depending on individual priorities, understanding, and budgets. This creates an uncertain environment for both business and consumer which serves neither well. The OFT has published [http://www.oft.gov.uk/business-advice/treating-customers-fairly/protection#.UdKcvli9KSM guidance] on the CPRs. Hopefully more will be forthcoming with a property specific slant.
In general agents should be careful about claims made for properties. General descriptions of areas as “quiet” or “pleasant” should have evidence to support them rather than being based on supposition or anecdote. Landlords and vendors should be asked to check particulars and sign them off explicitly for accuracy. There should also be procedures in place to train staff and check the quality of particulars and approve them before publication. The CPRs contain a defence of due diligence for agents and they should make sure they are in a position to take advantage of this.
If faced with prosecution agents should act early and robustly. Anthony Gold can advise on this area and has a strong record in heading off prosecutions of this sort at an early stage where a reasonable defence is available. Agents with good procedures can defend threatened prosecution and should be strong in defence of their processes.